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Abstract by the authors: Soft law instruments account for a sizable share of EU legal acts, with growing importance over time. Yet, while the implementation of hard EU law has been widely studied, little is known about the use of EU soft law at the national level. In the article, it is firstly argued that the type of soft law instrument will affect national usage. Administrators and judges may welcome interpretative guidelines to complicated pieces of legislation, while more open-ended instruments may be ignored. It is further argued that the maturity of the policy field matters. National actors in mature policy fields will be routinely exposed to EU rules and they are socialized into responding to impulses from Brussels. The article probes the plausibility of these expectations in case studies on the use of EU soft law instruments by German administrations and courts in four policy fields: financial market regulation, competition, environmental protection and social policy.
Abstract by the author: This article is based on the assumption that there is a continuum running from non‐legal positions to legally binding and judicially controlled commitments with, in between these two opposite types of norms, commitments that can be described as soft law. It aims at defining soft law in international relations in order to provide a mapping of EU law on the basis of the soft law/hard law divide. It helps categorise EU competences and public policies, and sees how they fit with the distinction between two kinds of processes: legalisation (transformation of non‐legal norms into soft or hard law) and delegalisation (transformation of hard law norms into soft law and evolution from hard to soft law).
Abstract by the authors: Differentiated integration in the European Union (EU) has been primarily discussed and analysed at the treaty level, whereas lack of systematic data has hampered the examination of secondary-law or legislative differentiation. We present a new data set of differentiation in EU legislation from 1958 to 2012, a descriptive analysis and a comparison of the patterns of primary- and secondary-law differentiation across time, member states and policies. We find that differentiation facilitating the accession of new members and constitutional differentiation accommodating the opposition against the integration of core state powers drive both primary- and secondary-law differentiation. In addition, we find complementarity between differentiation in treaty law and secondary legislation depending on the availability and salience of differentiation opportunities.
Abstract by the authors: Reflects on the conflicting views of the EU's legal acts system, involving static or dynamic conceptions of such acts, and the guidance given by cases such as European Commission v European Parliament (C-88/14) (ECJ) on whether such acts supplement legislative acts under TFEU art.290 or merely implement them under TFEU art.291. Reviews the existing position and discusses how both approaches may benefit EU law-making's legitimisation.
Abstract by the authors: Examines the scope of Member States' freedom of choice concerning their methods of transposing EU Directives into national law. Reviews the potential methods of transposition, including key aspects of elaboration, copying, or gold-plating, and analyses the factors responsible for limiting states' freedom of choice. Discusses why such choice is based on relevant national laws and on systematic analysis of a Directive's contents.
Abstract by the author: This article contributes to the study of the preliminary reference procedure and the literature on the decentralized enforcement of European Union (EU) law through national courts. Drawing on the ‘compliance pull’ explanation for why national courts submit preliminary references to the Court of Justice of the European Union (ECJ), it suggests that a greater need to clarify ‘the validity and interpretation’ of one act compared to another is associated with variation in Article 267 submissions. Drawing on a sample of 1,300 national court decisions on EU directives with variation in Article 267 Treaty on the Functioning of the European Union (TFEU) submissions, this article finds that disputes relating to directives leaving more room for manoeuvre in implementation (‘delegation’) and relating to more complex regulatory issues (‘information intensity’) are more likely to be referred to the ECJ for interpretation. It argues that neglecting the ‘compliance pull’ explanations has consequences for how we conceptualize ‘decentralized enforcement’.
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